EFF declares anti-piracy DMCA unconstitutional in new legal showdown

Controversial Section 1201 of US law comes under fire

The Electronic Frontier Foundation (EFF) has launched a lawsuit claiming that a controversial anti-digital-piracy law in the US is unconstitutional.

Section 1201 of the Digital Millennium Copyright Act (DMCA) – which became law 18 years ago – has long been controversial due to its heavy restrictions on what people are allowed to do with software. It was originally intended to protect the movie industry from piracy.

But the expansion of software – and corresponding digital protections – into an enormous range of devices including cars and medical devices has put increasing pressure on the law.

Although the law does include a safety valve in the form of a review by the Copyright Office every three years in which it receives proposals for exemptions, the EFF argues that it has failed to keep pace with the modern world. And that disparity has effectively made the law unconstitutional.

The EFF brings the lawsuit in Washington, DC on behalf of two plaintiffs: a computer scientist and a security researcher.

Andrew Huang is working on a completely open source computer and wants to extend the computer's abilities to enable it to remix video with other content, such as Twitter feeds. However, Section 1201 means that approach could be illegal since it would need to bypass digital protections to make it editable (even if the user has legally licensed the video).

And Matthew Green has been awarded grants to continue his work testing critical devices for security holes, but has also run up against Section 1201 because digging into software requires him to bypass digital protections.

The nub of it

At the heart of the argument the EFF is presenting is the fact that the DMCA's Section 1201 places controls on copyright beyond what the law of copyright actually allows.

Copyright is itself a special exemption to the idea of free speech – after all, it prevents people from using words or symbols in common usage in specific combinations, such as a sentence or a line of code. The DMCA places an additional layer of protection over that, but ends up also covering material that is not copyrightable.

EFF attorney Kit Walsh argues: "The creative process requires building on what has come before, and the First Amendment preserves our right to transform creative works to express a new message, and to research and talk about the computer code that controls so much of our world. Section 1201 threatens ordinary people with financial ruin or even a prison sentence for exercising those freedoms, and that cannot stand."

In other words, the law can be used to punish people carrying out activities protected under the First Amendment – hence it is unconstitutional.

Although the law has created some frustrating situations for consumers – having to buy new versions of movies all the time, for example – the expansion of software into every modern product is effectively locking down everything.

Car repair shops either have to pay car manufacturers to be allowed to work on their cars or risk violating the law by breaking protected software. With the smart home, this has even extended to such things as light bulbs and kitty litter boxes, says the EFF.

The lawsuit is going to take many years to work its way through the courts. The EFF knows this but hopes that by the end of it, it will be able to lift an unnecessary restriction that has the potential to hold back future innovations. It can expect an aggressive response from the movie industry. ®